Apple: Patently Insane

Guys, let’s call it what it is.  The United States Patent Office has lost it.  In fact, whatever “it” refers to, I’m sure they haven’t seen it in a long time.  Innovation in the tech industry is under a lot of pressure because companies are not allowed to compete with large organizations that employ legions of attorneys to patent every single idea that is given utterance.  In fact, many patents are issued for “inventions” that a company actually has no plans to build.  Some corporate entities merely speculate on gadgets or processes then obtain broad patents covering a gigantic swath of possible applications of the idea.  That way, after someone later on does the heavy lifting of figuring out how to build such a device and spends millions of dollars marketing it, the patent holder can swoop in and demand royalties and damages without having to take any of the risks associated with business.

The poster child example of such a company is Rambus. In the early 1990′s, Rambus convinced a number of computer chip manufacturers to participate in developing a new memory chip technology with higher clock speeds. Part of its process was using enhanced square-wave timing and modulation mechanisms to allow data manipulation without relying on only one specific portion of the wave.  This allowed retrieval and storage instructions at a higher frequency than the actual clock.  The idea greatly decreased the impact of certain bottlenecks in memory performance and impressed hardware designers so much that they all signed up.  The participating companies assumed that since the development was a collaborative effort, that they would all be able to freely deploy the hardware derived from the project.  Rambus remained silent about its patents (which other companies claimed they surreptitiously obtained) until after the chips were in widespread use and the corporations involved had invested tens of millions of dollars in retooling, marketing, and manufacturing costs.  Then they sprang their licensing demands (some say trap) on an unsuspecting computer chip industry in wave after wave of litigation.  In addition to the royalties, millions of dollars in legal fees were passed along to consumers in higher chip costs.

Given the amount of litigation we see in a typical year from companies trying to stifle competition in order to artificially boost their profits, I’m surprised the U.S. Patent Office hasn’t issued a patent for making ice from water.  I expect any day now some company (like Apple for example) will be filing an injunction against Switzerland to force them to stop letting so much water freeze up there in the Alps.  Frozen water in the Alps would no doubt infringe on someone’s patent by now wouldn’t it?

Take this BBC article about Apple suing HTC for instance.  Now what do you suppose Apple might be suing HTC for?  Perhaps the use of touch screen and multi-touch technology?  The big deal of late has been Google’s implementation of multi-touch technology in the Android-based Nexus One  mobile phone, which was built by HTC.  Apple claims that some patents that have been infringed-on are older patents it owns dealing with operating systems.  Google did not implement any radically new features that have not been used by EVERYONE making operating systems of every kind already, so how could it be possible that Apple’s decision to litigate NOW is not related to the Nexus One?  It is very disingenuous for Apple to enter into a well established industry where mobile phone titans such as Nokia, Blackberry, and Motorola just to name a few, have spent billions of dollars building a market for smartphones only to have Apple arrive on the tail-end claiming that THEY are the only ones who should be able to profit from the sale of phones with certain features, which they suddenly claim to own.

Now on the surface, Apple’s actions may seem to many to be anti-competitive and harmful to consumers (nothing new there) but whose fault is that? It is difficult to blame a company that owes as much greed as they can muster to its shareholders when they are required by law to increase share value where ever possible.  A great deal of blame lies with the U.S. Patent Office for issuing vague, broad-stroked, and far-reaching patents on generic concepts. This hits the tech industry like a sawed-off shotgun blast. The legal buckshot leaves pock marks everywhere with few companies escaping unscathed.

Apple CEO Steve Jobs claimed, “We think competition is healthy, but competitors should create their own original technology, not steal ours.” This begs the question, what does he mean by “create?”  What does he mean by “original technology?” What is an invention?  Webster’s Dictionary defines an invention as, “the creation of something not previously in existence : purposeful experimentation leading to the development of a new device or process.”  The only way that operating system patents could be applicable here would be considering the word “process” in a literal sense.  “Device” would not be applicable sense the iPhone was neither the first smartphone nor was it the first such device with a touchscreen.  Also, before Apple’s much-lauded “pinch” and “squeeze” pan and zoom features, I seem to remember CNN anchors fumbling on the screen with their clumsy 2-fingered map gadgets.  Essentially, there is prior art all over the place so considering a “pinch” to be a “process” according to Webster’s definition would be fantastically generous.

What are patents designed to protect?  According to the U.S. Patent and Trademark Office there are three types of patents:

• Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;
• Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and
• Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

At casual glance, we can rule out the third rule for Apple’s iPhone. The second rule could apply to the iPhone as an article of manufacture.  “Ornamental design” would be an example of the broad strokes I mentioned earlier.  No two phones look exactly alike and the iPhone did not introduce an entirely new paradigm in terms of its ornamental look even if its form was thinner or sleeker.  That is really just a natural progression of the direction phones are heading. The first rule is more interesting if you are a lawyer making the case for Apple because the term “new and useful improvement” is as vague and non-specific as you can get.  The addition of iTunes to a phone could be considered an improvement in the same way that adding cream and sugar are improvements of coffee.  [Oh gosh. I hope I didn't just give Starbucks some nutty ideas.]

Nokia is not taking all of this lying down. It has filed suits against Apple as well.  The main thing for consumers to know is that companies are not just protecting their rights.  They often abuse patent laws to prevent consumers from having a choice who they buy their products from.  Sadly, in the case of Apple it has a vibrant “fan-boy” community.  These are the individuals who love Apple so much that they are unable to find fault with anything that Apple does, no matter how decisively negative the impact to consumer rights may be.  So while there are few people coming out to support Nokia (mainly because folks just looove their iPhone), you can expect tech pundits—who tend to favor Apple—to write articles in typical Apple-apologist fashion telling us why Apple is an underdog; just a little train-that-could; a tiny fish swimming in a hostile sea of big, bad sharks. They do this even as Apple bricks its user’s phones for unapproved updates, erases unapproved applications without permission, and maintains obscure, undocumented, and secretive criteria for approval to its iPhone app store.  Developers wake up to find that their applications have been booted from the Apple app store for arbitrary reasons, or they spend months developing applications for the iPhone only to find out after the work is done, that Apple won’t approve the app for sale and won’t even explain to the developer why they are being refused. The developers are denied the chance to make the necessary changes to their software to avoid being forced to watch their hard work die on the vine.  Yea, poor little Apple.

As you can see in the preceding paragraphs, the wording of the patent types description is catastrophically vague.  The problem is that old, antiquated  ideas about product design have not kept up with technology.  It is interesting that Congress has passed the wretched DMCA, modernizing copyright law to protect companies in the digital age but no one has updated patent law to make it appropriate for digital products.  Therefore a company can add functionality of questionable merit to existing devices and then call it a new “creation” as Jobs did.

Let’s put it in context. Long ago, someone figured out how to send a voice signal through wires. Another guy figured out how to build a radio.  Yet another smart guy figured out how to send a voice signal through a radio after which an even smarter guy figured out how to distribute that signal over the entire Earth within seconds. Concurrently, a different guy figured out how to take a computer the size of an office building and reduce it to the size of a slice of bread, and then another guy increased the speed of computer chips by orders of magnitude, many times over.  Subsequently, an entire  industry grew itself by finding clever ways to make those things even smaller, faster, and more efficient, then they improved battery life tremendously, and put the Internet, email, and even TV at your fingertips in a device they dubbed the smartphone.  Finally, after a hundred years, untold BILLIONS of dollars, and all of that work, Steve Jobs figured out how to pinch it and stretch it.  And for that, he wants recognition essentially for INVENTING THE TELEPHONE! To top that off, he wants everyone building the current generation of smartphones to PAY HIM!…For THAT!

YOU’VE GOT TO BE KIDDING ME!

Then again, I think it is fair provided that you take the entire paradigm of the telephone into account and pay Apple its fair share for its contribution to the OVERALL capability of human beings to communicate via mobile devices.  Apple should get only those revenues for ALL retroactive iPhone sales based on its total contribution to the entire suite of technologies that are integrated into an iPhone.  Apple gets what it does now because it builds the interface that people using its devices SEE. They don’t see the Cell tower.  They don’t see the microwaves. They don’t see the computer chip fabs (fabrication factory), microcircuit motherboard fabs, the clean rooms, the fiber optic labs laying fiber spanning the Atlantic, satellite transmitter/receivers, LCD engineers, and on and on.  Everything that Apple has ever made has been built on backs of other people’s work.  That is not to belittle their contributions in terms of the sheer genius of  their interface designs.  They are clearly the best at that. But looking at the big picture, I bet the typical Apple engineer couldn’t describe for you how the buttons are made, much less all of the back-end infrastructure needed to make all of this stuff work together—nevertheless they still want royalties for an entire generation of phones.  It’s outrageous.

If you gave people the interface without all of the underlying telecommunications technology that is integrated into mobile phones (none of which Apple has a clue about) what you would have left is an iPod Touch (how’s that for irony?).  Remove the computer innovations that Apple did not invent, you’d have the world’s smallest Etch A Sketch or at best, a Sony Walkman.  For Apple’s “invention” they want you to pay one of the largest fees around, sign on with arguably the worst carrier service, get joined at the hip by a 2 year contract, pay the highest fees around with one of the worst data subscription plans, and to top it off you have to agree to allow them to tell you what software you can put on the phone and how you can use it.

When you read that last paragraph and then find out that millions of people are willing to sign on to such a deal, you can begin to see why companies like Apple can get away with what they do. The patent laws are tilted in their favor.  The DMCA is ALL about empowering the corporation and restricting the consumer. They can throw large sums of cash at lawmakers.  What little power people have left lies in their purchasing choices.  For whatever reason, people are loathe to vote with their cash.  It is a symptom of the got-to-have-it-now society we have today where no one is willing to take a stand for what they believe in if it means giving up a cutesy device like the iPhone, even where there are dozens of other choices available.  Or alternatively, does it mean that people do not believe in anything any more when they are willing to accept such draconian, zero-sum business practices like Apple’s?

There seems to be little hope that people will vote with their dollars but maybe the patent can be reviewed.  I think there is a better chance of people organizing to challenge patents than there is of people giving up all devices from companies with draconian business practices.  Consider the case of the Amazon 1-click patent.  Amazon actually began suing people whose checkout process did not require at least 2 clicks.  My first instinct was the 2-click patent but you see where that leads. I’d hate to see the 5,032-click checkout process that would eventually arise.  The reversal of that decision was pure luck if past history is any indication.  What we need is a comprehensive review of the U.S. patent regulations for starters, followed by a worldwide patent review to ensure that companies have a fair field on which to play.  This will benefit consumers in the long run because consumers ALWAYS benefit when companies have to compete to earn their place within the market.

The Patent Office is currently soliciting comments (until March 8, 2010) on how to “enhance the quality of issued patents” at patent_quality_comments@uspto.gov.  Feel free to chime in.

What do you think? Know any other example of patent law abuse?  Post your example in the comments section.

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